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Home My WebLink About2007-5475 PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, : Plaintiff : : CIVIL ACTION v. : : NO. 2007-05475 CASEY J. WILLIAMS, D.M.D., : Defendant : JURY TRIAL DEMANDED IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE EBERT, J. ORDER OF COURT th AND NOW this 24 day of June, 2011, upon consideration of Defendant’s Preliminary Objections to Plaintiff’s Amended Complaint, the briefs filed by the parties and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that Defendant’s Preliminary SUSTAINED Objections are , with leave granted to Plaintiff to file an amended pleading within twenty (20) days of the date of this order, consistent with the Court’s opinion. Defendant is granted twenty (20) days from service of any such amended complaint to file an answer or preliminary objections, and in the absence of an amended complaint, thirty (30) days from the date of this order to file an answer. By the Court, __________________________________________ M. L. Ebert, Jr., J. Bradley D. Allison, Esquire Attorney for Plaintiff 102 W. Penn Street, Suite 1 Bedford, PA 15522 Thomas J. Weber, Esquire Attorney for Defendant Golberg Katzman, PC 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, : Plaintiff : : CIVIL ACTION v. : : NO. 2007-05475 CASEY J. WILLIAMS, D.M.D., : Defendant : JURY TRIAL DEMANDED IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE EBERT, J. ORDER OF COURT EBERT, J., June 24, 2011 – PROCEDURAL HISTORY This civil action began when Nancy K. Baker and Paul W. Baker, her husband, filed a Praecipe for Issuance of Writ of Summons on September 17, 2007. Before a Complaint was filed, Nancy died on March 20, 2009. In her Last Will and Testament, Nancy named her husband Paul as the executor of her estate. A Statement of Material Facts was filed on November 16, 2009, substituting “Paul W. Baker, individually, and as Executor of the Estate of Nancy K. Baker, deceased” for Nancy’s name in the caption of this case. On November 19, 2009, Plaintiff filed a complaint alleging counts for negligence, wrongful death, loss of consortium and punitive damages against Defendant Casey J. Williams, D.M.D. On February 9, 1 2010, Plaintiff filed an amended complaint. Defendant filed Preliminary Objections to Plaintiff’s Amended Complaint on February 23, 2010, requesting that Plaintiff’s claim for punitive damages be dismissed with prejudice based on the alleged legal insufficiency of Plaintiff’s pleading. 1 Plaintiff amended Paragraph 32(e) of the Complaint to state that the claim for punitive damages was based on conduct more fully alleged in Paragraphs 8 and 9 rather than paragraph 7 as was originally stated in the Complaint. STATEMENT OF FACTS 2 The following facts are alleged in Plaintiff’s Amended Complaint. On or about March 29, 2007, Nancy K. Baker visited her family physician, Dr. Donald Kovacs, complaining of pain 3 and soreness in the left lateral border of her tongue. After prescribing an oral rinse, Dr. Kovacs 4 suggested that Nancy visit a dentist for further treatment. On or about April 12, 2007, Nancy visited Defendant Casey J. Williams, D.M.D. who was licensed to practice general dentistry in 56 Pennsylvania. Nancy complained to Defendant of the pain and soreness in her tongue. From April 12, 2007 until August 28, 2007, Defendant performed various dental procedures on Nancy, for which he charged her $1,000, and he recommended additional dental treatment anticipated to 78 cost over $2,000. Defendant never referred Nancy to an oral surgeon to biopsy her tongue. Nancy made her own appointment with Dr. Frederick Hecht, an oral and maxillofacial 9 surgeon in Carlisle, on or about August 28, 2007. Dr. Hecht performed a biopsy on Nancy’s tongue and informed her that she had an ulcerating and well to moderately differentiated 10 squamous cell carcinoma in her tongue. From there, Nancy was referred to Dr. Roger Levine, an otolaryngologist, who diagnosed her with stage II squamous cell carcinoma of the left lateral 11 tongue. Dr. Levine performed surgery on Nancy on or about October 4, 2007, removing part of 12 her tongue, part of her throat, and several of her lymph nodes to which the cancer had spread. The surgery left Nancy unable to talk, swallow, or eat in the manner in which she had prior to the 2 The recitation of facts alleged in Pl.’s Compl. is not intended to indicate any view of the court as to their accuracy. 3 Pl.’s Compl., filed Feb. 9, 2010, ¶ 5 [hereinafter Pl.’s Compl. ¶ __]. 4 Pl.’s Compl. at ¶ 6. 5 Pl.’s Compl. at ¶ 3, 7. 6 Pl.’s Compl. at ¶ 7. 7 Pl.’s Compl. at ¶ 8. 8 Pl.’s Compl. at ¶ 9. 9 Pl.’s Compl. at ¶ 10. 10 Pl.’s Compl. at ¶ 11, 12. 11 Pl.’s Compl. at ¶ 13, 14. 12 Pl’s Compl at ¶ 15, 16. 13 surgery. Under the care of Dr. Ronald Malcom, Nancy underwent radiation and chemotherapy 14 treatment. The treatment caused Nancy to develop large ulcers in her esophagus which made it 15 difficult for her to eat. Nancy was admitted to the hospital numerous times following the surgery due to the 16 effects of the radiation and chemotherapy treatment. Nancy became very weak and, on or about September 15, 2008, she fell in her home and sustained a fractured right hip which 17 required hospitalization and surgery. On or about March 1, 2009, after becoming progressively thinner and weaker, Nancy was admitted to the Intensive Care Unit of the Carlisle Hospital in 18 Carlisle, Pennsylvania. On March 19, 2009, Nancy was transferred by ambulance to 19 Harrisburg Hospital in Harrisburg, Pennsylvania. Nancy died on March 20, 2009, at 20 Harrisburg Hospital from pneumonia and/or complications resulting from her weakened state. 21 Plaintiff is asserting a claim for punitive damages against Defendant. Plaintiff alleges that Defendant had knowledge and familiarity with Nancy’s history, her age, and her continued 22 complaints of pain and soreness in the left lateral border of her tongue. Plaintiff alleges that Defendant’s failure to timely diagnose the suspicious lesion in Nancy’s tongue and/or refer her to an oral surgeon while continuing to perform dental procedures for a period of over 4 ½ months and billing her for the same constituted outrageous conduct and/or reckless indifference to 23 Nancy’s rights. 13 Pl.’s Compl. at ¶ 18. 14 Pl.’s Compl. at ¶ 17. 15 Pl.’s Compl. at ¶ 19. 16 Pl.’s Compl. at ¶ 20. 17 Pl.’s Compl. at ¶ 21. 18 Pl.’s Compl. at ¶ 22, 23. 19 Pl.’s Compl. at ¶ 23. 20 Pl.’s Compl. at ¶ 23. 21 Pl.’s Compl. at ¶ 32(e). 22 Pl.’s Compl. at ¶ 9. 23 Pl.’s Compl. at ¶ 8, 9, and 32(e). In filing Preliminary Objections to Plaintiff’s Amended Complaint, Defendant states that 24 Plaintiff’s claim for punitive damages should be dismissed with prejudice. Defendant asserts that Plaintiff has made no factual averments concerning any alleged “outrageous” or “reckless” 25 conduct of Defendant other than boilerplate legal assertions. Defendant maintains that Plaintiff has failed to allege any facts that suggest intentional, reckless, or malicious conduct and has 26 made only conclusory assertions that Defendant demonstrated such conduct. Defendant maintains that, at most, Plaintiff has alleged that Defendant’s treatment of Plaintiff did not meet 27 the requisite standard of care appropriate for the dental procedures involved in this case. DISCUSSION According to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure, preliminary objections in the form of a demurrer may be filed by any party to any pleading on the grounds of legal insufficiency of a pleading. Pa.R.C.P. 1028(a)(4). When a court considers preliminary objections in the form of a demurrer, it accepts as true all well-pleaded material facts in the complaint, as well as, all inferences it might reasonably deduce from those facts. Donnelly v. DeBourke, 486 A.2d 826, 828 (Pa. 1980). Only in cases that are clear and free from doubt, in which it appears with certainty that the law will not permit recovery by the plaintiff upon the facts averred, should a court sustain preliminary objections and dismiss a claim. Id. Pennsylvania has adopted Section 908(2) of the Restatement (Second) of Torts as the guideline for the imposition of punitive damages: "Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984); see also Chambers v. 24 Preliminary Objections of Defendant to Pl.’s Compl., filed Feb. 23, 2010, ¶ 19.[hereinafter Prelim. Objections of Def. to Pl.’s Compl. ¶ __]. 25 Prelim. Objections of Def. to Pl.’s Compl. at ¶ 12. 26 Prelim. Objections of Def. to Pl.’s Compl. at ¶ 16. 27 Prelim. Objections of Def. to Pl.’s Compl. at ¶ 16. Montgomery, 192 A.2d 355, 358 (Pa. 1963). With regard to claims for punitive damages, the Pennsylvania Supreme Court has emphasized that “the state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.” Feld, 485 A.2d at 748. Under Pennsylvania law, the only definition of reckless conduct that is sufficient to create a jury question on the issue of punitive damages is where the “actor knows, or has reason to know, . . . of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or fail to act in conscious disregard of, or indifference to, that risk.” SHV Coal, Inc. v. Cont’l Grain Co., 587 A.2d 702, 494-95 (Pa. 1991) (citing Restatement (Second) of Torts § 500 cmt. a (1965)). In the present case, Plaintiff’s Complaint fails to show that Defendant’s conduct toward Nancy was outrageous. The allegations in the Complaint lack the specificity necessary to conclude that Defendant was intentional, reckless, or malicious in his state of mind when acting or failing to act. The allegations also fail to support a finding that Defendant acted with an evil motive. While Plaintiff alleges that Defendant performed dental procedures on Nancy for a period exceeding four months and recommended additional procedures, it is not alleged that the dental work performed was frivolous or unnecessary. Furthermore, although Plaintiff alleges that Defendant billed Nancy $1,000 for the completed dental procedures and anticipated billing her more than $2,000 for additional work, it is not alleged that Defendant was over-billing Nancy, or ignoring her tongue complaint in order to simply maximize the amount of money he could make by continuing unnecessary treatments. When preliminary objections are filed, Rule 1028(c) states, “A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections.” Pa.R.C.P. 1028(c). Even after twenty days have passed, however, the Pennsylvania Superior Court has held that “where it is apparent that a pleading can be cured by amendment, the . . . court may not sustain a demurrer that would put an end to a controversy without giving the pleader an opportunity to file an amended complaint, if there exists a reasonable possibility that a cause of action may be sustained.” Del Turco v. Peoples Home Savings Ass’n, 478 A.2d 456, 464 (Pa. Super. 1984). The Plaintiff’s rather vague reference in paragraphs 8 and 9 of his amended complaint to what Nancy was charged or what further dental treatment was proposed with more specific facts could support a claim of evil motive or recklessness if it were shown that the Defendant simply wanted to maximize his profit while totally ignoring Nancy’s obvious tongue ailment. Therefore at this juncture, this Court cannot say that there is not a reasonable possibility that Plaintiff’s defective claim for punitive damages cannot be cured by amendment of the complaint. Accordingly, the following Order shall be entered: th AND NOW , this 24 day of June, 2011, upon consideration of Defendant’s Preliminary Objections to Plaintiff’s Amended Complaint, the briefs filed by the parties and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that Defendant’s Preliminary SUSTAINED Objections are , with leave granted to Plaintiff to file an amended pleading within twenty (20) days of the date of this order, consistent with the Court’s opinion. Defendant is granted twenty (20) days from service of any such amended complaint to file an answer or preliminary objections, and, in the absence of an amended complaint, thirty (30) days from the date of this order to file an answer. By the Court, __________________________________________ M. L. Ebert, Jr., J. Bradley D. Allison, Esquire Attorney for Plaintiff 102 W. Penn Street, Suite 1 Bedford, PA 15522 Thomas J. Weber, Esquire Attorney for Defendant Golberg Katzman, PC 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268